The National Security Law's (NSL) scope of application fully aligns with the principles of international law, international practice and common practice adopted in various countries and regions, the Department of Justice said today.

In a statement responding to criticisms by some countries and organisations on the action taken by Police’s National Security Department on July 3 to list eight individuals who have absconded overseas and allegedly committed offences under the NSL as wanted persons, the department pointed out that such criticisms were made in complete disregard of basic jurisprudence and facts.

In general, under the territorial principle in international law and international practice, the Hong Kong Special Administrative Region’s criminal law only regulates acts that take place in the city.

At the same time, however, since international law and relevant practice have established exceptions to the territorial principle, the personality principle and the principle of protective jurisdiction are also in place - any state has the right to formulate laws based on these principles to exercise jurisdiction over criminal acts committed outside its boundary, the department explained.

As such, the NSL, formulated by the central authorities, has its scope of application precisely defined in accordance with these principles of international law, international practice and common practice, the department noted.

Moreover, due to the fact that a lack of extraterritorial effect in such laws would mean condoning activities such as secession and subversion carried out by ill-intentioned people overseas, the department said extraterritorial effect is an essential component of the NSL.

Personality principle

If an offender’s identity has close connection with the Hong Kong SAR, the personality principle applies. Under this principle, a state may exercise jurisdiction over criminal acts committed by its people outside its boundary.

Article 37 of the NSL is an application of this principle, the department pointed out.

Overseas examples of national security laws that tackle criminal acts committed outside the sovereign territory in accordance with the personality principle include the US’ offences of treason and unlawful disclosure of classified information, the UK’s offence of treason and the Terrorism Act 2000, Australia’s foreign interference offence, Canada’s offence of treason, and Germany’s offence of dissemination of propaganda material of unconstitutional and terrorist organisations.

Principle of protective jurisdiction

When criminal acts go against and undermine the security or the vital interests of Hong Kong, the principle of protective jurisdiction applies. Under this principle, if foreigners commit criminal acts abroad against a sovereign state that endanger its security or its vital interests, the sovereign state can adopt laws with extraterritorial effect to exercise prescriptive criminal jurisdiction.

Article 38 of the NSL is a provision to this end.

Foreign national security laws which apply the protective principle include the US’ terrorism offences, the UK’s National Security Bill now at the final legislative stage, Australia’s espionage offence, Canada’s espionage offence, and Germany’s offence of theft of state secrets, to name a few.

As the elaboration above illustrates that the national security laws of various countries also have extraterritorial effect under the principles of personality and protective jurisdiction, the Department of Justice said the criticisms by certain countries against Hong Kong were of double standards and sophistry.

The Hong Kong SAR Government added that it will take all necessary measures in accordance with the law to pursue the liability of people who have allegedly committed offences under the NSL outside Hong Kong.